فصلنامه فقه و اصول
پیاپی 128 (بهار 1401)

The imbecile, due to the intellectual deficiency, lacks capacity to do financial acts and his acts are inoperative in this regard. Consequently, the imbecile’s confession in the sense of a declaration against oneself should not be valid principally in case it has financial implications. In a criminal case, confession may be made about a claim for damages resulting from a crime which would be evidently invalid if involving financial compensation; however, if confession is in the context of the public aspect of a crime, the Islamic Penal Code legislator has declared it operative in article 170 of the Code. In the present research, the Imamia jurisprudential sources have been studied through a descriptive-analytical method and it has been concluded that as far as financial punishmentS such as blood money and fines are concerned, the imbecile’s confession is not operative, neither may it be made operative subsequently. Confession about non-financial penal sanctions is operative, though the subject of crime may be the others’ financial rights. Additionally, the imbecile’s confession with regard to the financial liability of a crime, whether its subject is a debt or a specified object is not valid and not only it cannot be made operative by his guardians but it won’t become operative in case incapacity declines.

Optional duress, as one of the most widely used types of duress, is divided into three kinds: duress over comprehensive, substitute duress and duress over indeterminate example. The present study, with its subjectology, seeks to evaluate the applicability of the concept of duress to different kinds of optional duress. According to the findings of this research, in case of duress over comprehensive if the subject matter of duress is comprehensive of valid, duress is extended from comprehensive to the example, but if the subject matter of duress is comprehensive of valid and invalid, duress does not affect the elimination of individual effects. Substitute duress is examined in three parts: in the first part where substitute duress is over vertical examples and is specific to independent precepts and its subject matter is two or more alternative examples, there are generally three theories the correct one is that the concept of duress does not apply to the example; in the second part i.e. substitute duress over horizontal examples, there are two theories the correct of which is that the concept of duress does not apply to the first example and only applies to the second and there is no difference between the imperative and positive rules; in the third part where the subject matter of duress is leaving an element or proviso of obligation, under Usuli rules, the principle of obligation fails. In duress over indeterminate example, the correct opinion is that such kind of duress is unreasonable in terms of reality.

With the formation of the idea of systematization through Islamic jurisprudence, many sub-systems were formed based on jurisprudential views. Iranian legal system is no exception to this rule. The formation of laws on the basis of Islam led to the entrance of many jurisprudential views into the realm of law. The condition of the absence of paternity is among the cases entered into the realm of law from Shiite jurisprudence. The universality of positive laws, especially criminal provisions, has made social developments and demands not tolerate certain views of traditional jurisprudence such as non-retaliation of father and on the opposite, retaliation of mother for murdering one›s child. The theory of establishing a dynamic jurisprudence that keeps up with the developments of time has created capacities for transition from the text-based jurisprudence to the evidence-based jurisprudence. The objectives of religion, the necessities of time and place and the jurisprudential rule of justice are among the capacities that have provided the possibility of the dynamics of jurisprudence. In this study, through attempting to use the justice principle as one of the major objectives of religion, the difference between father and mother in the execution of retaliation punishment has been examined.

There is no doubt about the very recognition of repeated crime institute as a general cause of aggravating the punishment in in the Islamic Penal Code of 2014 and its origination from Islamic jurisprudence; however, it is doubtful whether the aggravating penalizing of this institute is in line with its corresponding jurisprudential texts. The existence of jurisprudential dispute over the determination of the death penalty, dubiety concerning the homogeneity of Hudud and instances of non-codified Hudud, ambiguity regarding the effects of variables of repentance, withdrawing the confession and the territorial scope of the levels of repetition of Haddi crimes, dubiety concerning the legitimacy of the aggravated punishment overtaking the Hadd constitute the jurisprudential challenges in this respect. The purpose of this research is restudying the jurisprudential views and arguments related to the above said challenging topics which has been performed through a descriptive-analytical method and led to presenting necessary conclusions and recommendations to the Iranian criminal legislator in order to adopt an explicit and conscious approach. The necessity of the legal abolition of the death penalty and adoption of the policy of executing the Haddi punishment in addition to the aggravated Taaziri punishment,  regardless of the  homogeneity of crime in the repetition of Haddi crimes, is the most important hypothesis of this paper.

Linguistics and Usul al-Fiqh are two sciences with different definitions and objectives. However, there are several topics dealt with in both sciences. The relationship between term and meaning is one of the above said topics which are both among the basics of linguistics and Usul al-Fiqh. Shahid Sadr has proposed a new theory titled close connection, Saussure, as the father of modern linguistics, has extensively examined the relationship between term and meaning and expressed his views. Since the topic of this research is language, the viewpoints of the two thinkers may be examined comparatively from three aspects: the relation between the faculty of speech stated by Saussure and the three natural laws addressed by Shahid Sadr, the place of signification and determination of signifier and signified in terms and finally, the optional or mandatory nature of the relation between term and meaning. Examining and comparing the theories of these two thinkers, who have both discussed this topic from different perspectives, can provide the grounds for a better understanding of this issue in the two disciplines.

Legal addresses is one of the important and influential theories proposed and developed by Imam Khomeini. He has expressed this theory about the way religious precepts are legislated and believes that the general addresses of Sharia have been issued in the position of legislating and different states occurred to duty-bounds such as power and knowledge, have not been considered as provisos in them; instead, the precept has been issued as to the general titles considered in the address. This theory has several implications in different chapters of jurisprudence. The present research has been performed with the aim of analytical examination of this theory and its implications in the field of the acts of worship jurisprudence and using the ijtihadi analysis method by referring to library sources. The result of this research is to prove the superiority of this theory over the famous theory of dissolution and to present the different implications of this theory in the field of the acts of worship jurisprudence.

In the present study, the practical approach of Islamic jurists to the narration: “a man who had sold a free man was brought to Amir al-Mu'minin and he cut off his hand”, has been examined from both aspects of criminalization and punishment of crime through a descriptive-analytical method. As far as the nature of crime and punishment mentioned in the above said narration are concerned, the earlier jurists have proposed theft with hand cut off or Taazir as its punishment, corruption on earth with hand cut off as its punishment, absolute corruption with hand cut off or Taazir as its punishment.  The later jurists have considered this crime as kidnap with undetermined punishment. Nevertheless, the text of the above said narration has declared the crime as selling a free man with hand cut off as its punishment. This crime may be considered as trade of human beings with cut off as its punishment; since it leads to the revival of slavery, denies the will and restricts the choice and requires a strong deterrent such as cut off and ease of execution, so that it is realized without the need that the conditions for theft of property are met.

The present paper, while examining the validity of the proofs of the famous opinion of juristsconcerning murder under duress, explains the evidences which strengthen non-retaliation of theperpetrator as well as the solutions that may be raised as substitutes for the famous opinion. Forthis purpose, it has been shown that the Zorara›s Narration is defective in terms of hierarchyof its narrators and signification for murder under duress and the traditions of the chapter ofimpermissibility of taqiyyah (precautionary dissimulation) about bloods do not include murderunder duress. Citing idjma (consensus) is not correct either; since in addition to the differentviews of some later jurists such as Ayattollah Khoei, due to the above said narrations, idjma ismadraki (consensus whose sources are known) and may not be cited. Neither does the equalityof the two risks preclude the resort to duress in murder, nor does it cause the retaliation of theperpetrator who was victim of duress. Comparison of duress with necessity in murder is paralogismand invalid due to their difference. The following may be cited among the reasons fornon-retaliation of the victim of duress: the murder not being violent, the existence of repellingdubiety as to Hadd like retaliation and the interference of the two precepts and consequently,application of the principle of option because of their equivalence.

The retaliation punishment is among individual rights which may be waived by the right holder(the victim). The essential question is that what effect does forgiving of the original crime by thevictim have on the criminal’s criminal responsibility for subsequent spread of the crime to thesoul or other organ? According to the view attributed to the famous jurists, in case of spread toan organ, the criminal is sentenced to pay its blood money and in case of spread to the soul, heis sentenced to retaliation and in both cases, the blood money of the forgiven crime should bereturned to the criminal. The only difference between the second view and the first opinion isthe non-necessity of returning the blood money of the forgiven crime in case of spread to thesoul. Under the third view, forgiving the crime is equal to forgiving the spread and the criminalis not responsible for subsequent spread. According to the selected view, if spread is intendedby the criminal or the instrument of crime typically causes the spread, the criminal is sentencedto retaliation for spread; otherwise, in case of spread to the soul, returning the blood money ofthe forgiven crime is not necessary either. The present paper, in addition to analyzing the jurisprudentialbases of the issue, reasoned and innovative criticism of opinions and answering theraised problems, proposes the modification of legal provisions based on the latter view with theraised considerations about it.